IN THE CASE OF:
BOARD DATE: 25 August 2011
DOCKET NUMBER: AR20110001991
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that he be permitted to elect coverage for his spouse under the Survivor Benefit Plan (SBP).
2. The applicant states he was not properly informed about the SBP application process by the reserve unit administrator when he went to add his spouse to the Defense Eligibility Enrollment Reporting System (DEERS), TRICARE, and to obtain an identification card for her on 30 June 2009. The applicant further states the unit administrator was contentious, confrontational and did not seem to care about him or his dependent. Due to the misinformation or misunderstanding he received, he requests a waiver to permit him to elect SBP coverage for his wife.
3. The applicant provides his marriage certificate and spouses DD Form 1173 (United States Uniformed Services Identification and Privilege Card).
CONSIDERATION OF EVIDENCE:
1. The applicant was inducted into the Army of the United States on 30 August 1966. He was released from active duty and transferred to the U.S. Army Reserve (USAR) on 23 August 1968.
2. On 14 August 1997, he received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) from the U.S. Army Reserve Personnel Center. The applicant retired from the USAR and was placed on the retired list on 5 March 2004, in the rank of sergeant first class.
3. On 31 January 2006, the applicant submitted DD Form 2656 (Data for Payment of Retired Personnel) which shows he was unmarried, had no eligible dependents and elected not to participate in the SBP.
4. The applicant married his spouse on 19 April 2009.
5. In a letter from the Defense Finance and Accounting Service Retired and Annuity Pay, dated 20 April 2011, the applicant was informed they could not process his SBP request because he had not elected coverage for his spouse within one year of the marriage.
6. The applicant provided his spouses DD Form 1173, the Date of Issue shows 30 June 2009.
7. Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving family members. The member may elect not to participate (with their spouses concurrence, if required), but the election must be made before the first day for which the member is eligible to receive retired pay.
8. Title 10, U.S. Code, section 1448(a)(5) provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP, but who later marries or acquires a dependent child, may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child.
9. The National Defense Authorization Act for Fiscal Year 2005 established an Open Season for enrollment to be conducted 1 October 2005 to 30 September 2006. The retiree must pay monthly premiums starting on the date of enrollment and a buy-in premium covering all the costs that would have been paid for the election if it had been made at the first opportunity to do so.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that he be permitted to elect coverage for his spouse under the SBP has been carefully considered.
2. The applicant states, the unit administrator assisting him was unpleasant, disinterested, and unhelpful while enrolling his spouse in DEERS, TRICARE, and obtaining her an identification card. The applicant intended to enroll his new spouse in SBP at that time, which was within the statutorily mandated one-year post-marriage enrollment window, but he either did not understand the process or it was not explained to him by the unit administrator.
3. However, the applicant has submitted no independent evidence establishing that he broached the issue of SBP with the unit administrator, or that the administrator provided poor advice regarding SBP, or that the applicant completed any paperwork whatsoever relating to SBP enrollment which was somehow mishandled.
4. Unfortunately, it appears the applicant was not reasonably diligent with respect to enrolling his spouse in SBP coverage. The evidence shows the applicant queried DFAS about SBP enrollment and received a negative response two years after his marriage to his new spouse. This lack of diligence resulted in his untimely request for coverage.
5. When the applicant failed to add his spouse within one year of their marriage, he irrevocably forfeited coverage except during a Congressionally-approved open enrollment period. There has not been an Open Season since the last one which expired on 30 September 2006. Enrollment of the spouse as beneficiary will not be possible until another Open Season is authorized.
6. In view of the foregoing evidence, he is not entitled to the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ __X_____ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ X______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20110001991
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ABCMR Record of Proceedings (cont) AR20110001991
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